5
jurisdiction.” For which reasons it requested that, “once this preliminary objection is
found to be well grounded, the Court declare it lacks competent jurisdiction to
consider the above mentioned request.” In its final written argument Panamá
“ratifi[ed] and reiter[ated] the preliminary objection.”
13.
The Commission considered that “the objection made had to be rejected
because it was inadmissible and groundless,” inasmuch as the Court has “an
unquestionable competent jurisdiction to set reparations for the victims of human
rights violations, among which four general kinds of reparation have been
distinguished, such as […] restitution, compensation, rehabilitation and adopting
measures aimed at satisfaction and at setting up non-repetition guarantees.” Within
such guidelines, once a case has been determined on the merits and the existence of
a violation to the American Convention has been established, according to the
Commission, the Court has competent jurisdiction to order measures “encompassing
the different ways a State has to acquit itself of the international responsibility in
which it has incurred.” Based on the foregoing reasons, the Commission considered
the preliminary objection made by the State must be rejected on account of its being
evidently groundless.
14.
The representatives indicated that such argument does not refer neither to
matters affecting the competent jurisdiction of the Court to consider the case, nor to
its admissibility, for which reasons it does not amount to a preliminary objection.
Inasmuch as the argument aims at rebutting a motion for reparations, it must be
assessed when the stage for considering reparations is reached.
15.
The Tribunal deems it necessary to point out that although neither the
American Convention nor the Rules of Procedure do explain the notion of
“preliminary objection,” the Court has stated that through such act the admissibility
of an application, or the competent jurisdiction of the Tribunal to consider a certain
case or one of its aspects, is objected by reason of the persons, of the subject
matter, of the time or of the place.4 In other instances, the Court has pointed out
that a preliminary objection has the purpose of obtaining a decision preventing or
barring consideration of the merits, either of the challenged matter or of the whole
case. For which reason, it must be spelled out therefore that it responds to its
essential legal characteristics, its content and purpose being of a “preliminary”
nature. The contentions not having such nature, for example those regarding the
merits of a case, may be put forth through other procedural acts provided in the
American Convention, but not as a preliminary objection.5
16.
The Court considers that the contention by the State in connection with the
power of the Tribunal to order a reparation measure is a claim that does not qualify
as proper subject matter for a preliminary objection. That is therefore inasmuch as
such challenge does not have the purpose nor the ability to prevent the Court from
considering the merits of the dispute brought before it, in whole or in part. In effect,
even if the Court were to determine the matter as the State contends, that would in
no way affect the competent jurisdiction of the Tribunal to consider the merits of the
instant case. On the basis of the foregoing the pleading is rejected, for it does not
qualify as a proper preliminary objection.
4
Case of Luisiana Ríos et al. v. Venezuela. Order by the Inter-American Court of Human Rights of
October 18, 2007, Considering Clause Number 2 and Case of Castañeda Gutman v. Mexico. Preliminary
Objections, Merits, Reparations and Costs. Judgment of August 6, 2008. Series C No. 184, para. 39.
5
Cf. Case of Castañeda Gutman, supra note 4, para. 39.